Boehner's lawsuit against the Obama administration

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Word of a potential lawsuit initiated by Speaker of the House John Boehner against President Barack Obama and his administration began to circulate in June 2014. On June 24, 2014, Boehner confirmed to reporters at a press conference that he planned to initiate a suit to sue the president over his use of executive action.[1] During the press conference, he also indicated that in July he would bring a bill to the House floor authorizing a Bipartisan Legal Advisory Group (BLAG) to file the lawsuit against the President. The group is made up of the top three House GOP leaders--the Speaker of the House John Boehner, the majority leader Kevin McCarthy and majority whip Steve Scalise-- and the top two Democratic leaders--the minority leader Nancy Pelosi and minority whip Steny Hoyer.[1]

In a June 2014 memo to House members announcing the vote needed to authorize BLAG, Boehner indicated the legal action would cover a number of issues--including health care law, energy regulations, foreign policy and education-- but did not cite specific cases of executive overreach.[1] However, Boehner bypassed the step when, following a consult with legal experts, he "decided a BLAG vote was unnecessary."[2]

On July 10, 2014, it was announced that the lawsuit would focus on Obama's failure to enforce the Patient Protection and Affordable Care Act's employer mandate.[3] The lawsuit could cost up to $350,000 in legal fees.[4]

Employer mandate delay

See also: Obamacare overview

Boehner revealed on July 10, 2014, that the suit would focus on the president's failure to enforce the Patient Protection and Affordable Care Act's employer health insurance mandate deadline. He claimed President Obama "changed the healthcare law without a vote of Congress, effectively creating his own law by literally waiving the employer mandate and the penalties for failing to comply with it."[5]

The law stated that businesses with over 50 employees needed to offer health benefits before the 2014 deadline or face a fine for not complying with the law. The administration delayed the deadline in July 2013 by one year and then again in February 2014 by another year, pushing the mandate deadline to 2016 for businesses between 50 and 99 employees.[6][7] Obama was asked in 2013 about the legality of the delay, to which he responded, "If Congress thinks that what I’ve done is inappropriate or wrong in some fashion, they’re free to make that case. But there’s not an action that I take that you don't have some folks in Congress who say that I'm usurping my authority.[6]

Rules Committee Chairman Pete Sessions (R-TX) announced the draft resolution that would be considered by the House Rules Committee on July 16, 2014, with a possible vote on the House floor the following week.[5][3] Sessions said of the lawsuit, "The President’s failure to uphold his oath dangerously shifts the balance of power away from what the Founding Fathers intended and the Constitution requires. Congress’ ability to effectively represent the American people is severely restricted when the executive unilaterally chooses to create its own laws."[3]

Timeline of events

  • July 16, 2014: Hearing began before the House Rules Committee to consider and debate the merits of the legislation that would authorize the lawsuit.[9][10]
House Rules Committee vote on resolution 676, July 24, 2014
Party Votes for bill Votes against bill Total votes
Democratic Party Democrats 0 4 4
Republican Party Republicans 7 0 7
Total Votes 7 4 11
  • July 29, 2014: Boehner called talk of impeachment a "scam dreamed up by the White House."[13]
House vote on HR 676, July 30, 2014
Party Votes for bill Votes against bill Total votes
Democratic Party Democrats 0 196 196
Republican Party Republicans 225 5 230
Total Votes 225 201 426
  • August 25, 2014: Candice Miller (R), chairwoman of the House Administration Committee, announced a contract with lawyer David B. Rivkin Jr. of the BakerHostetler law firm, who was chosen to represent the U.S. House in its lawsuit against President Obama. The contract stated the House would pay Rivkin $500 per hour and was set to expire in January 2015, meaning the total cost would be, at most, $350,000.[4][18]

Specifics of the lawsuit

Funding: The lawsuit is completely taxpayer funded with outside lawyers being hired.[20][21]

Lawyers representing the U.S. House: Two lawyers, first David Rivkin Jr. of BakerHostetler and later Bill Burck of Quinn Emanuel, backed out of the case.[22] In November 2014, the U.S. House hired a third lawyer, George Washington University law professor Jonathan Turley, to represent them in the lawsuit.[23]

Judge: The case was assigned to Judge Rosemary Collyer of the D.C. District Court.[24]

Legal process:

  • Step 1: House Republicans first investigated President Obama's executive orders to lay out specific instances in which the president violated laws.
  • Step 2: The House Rules Committee drafted a resolution authorizing Boehner to go forward with the lawsuit.
  • With a Republican majority in the committee, which is led by Rep. Pete Sessions (R), Democrats on the committee had little chance of revising the resolution.[25]
  • Step 3: Although the original plan was to convene the Bipartisan Legal Advisory Group (BLAG) to approve the final wording of the lawsuit, Boehner "decided a BLAG vote was unnecessary, after consulting legal experts.”[26][27][2]
  • Step 4: The suit went to the House floor for a final vote by all Representatives on whether or not to go forward with the lawsuit.[28]
  • With a Republican majority in the House, the lawsuit passed.

Requirements of the lawsuit:

  • Boehner's lawyers stated that, in order to pursue a lawsuit, the House must be able to "demonstrate a concrete, particularized injury, caused by the defendant, which can be remedied by a court."[29]
  • For the lawsuit to have standing, The House would have to accomplish the following goals, according to Rivkin:[30]
  • "to prove injury as an institution
  • to prove that as an institution, it has authorized the lawsuit, through a vote by BLAG
  • to prove that no other private plaintiff has standing to challenge
  • [to prove] that there are no political remedies available to Congress."

Intended outcome

  • Boehner denied that the move was about energizing Republicans ahead of the 2014 midterm elections.[1]
    • "This is about defending the institution in which we serve. If you look back over the past 235 years of our history there's been movement between the inherent powers of the executive branch vs the inherent powers of the legislative branch and what we've seen clearly over the past 5 years is an effort to erode the power of the legislative branch," Boehner said.


Reaction to lawsuit against the Obama administration
Poll Legitimate suit Political stuntNot sureMargin of ErrorSample Size
Public Policy Polling
July 11-13, 2014
Note: The polls above may not reflect all polls that have been conducted. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to


Republican support

  • Republicans argue that President Obama is breaching the constitutional power of the executive branch by side-stepping the legislative process.[1]

Republican criticism

  • Conservative blogger and editor Erick Erickson spoke out against the lawsuit, stating, “John Boehner’s lawsuit is nothing more than political theater and a further Republican waste of taxpayer dollars"[31]
  • Conservative author Andrew McCarthy ridiculed Boehner's threat: "Boehner and Beltway Republicans are essentially saying, 'We can't use our power because Obama and his media friends would say mean things about us. But our lunatic conservative base is demanding action. So let us file a lawsuit so we can say we did something."[32]
  • After calling for President Barack Obama’s impeachment, Sarah Palin criticized John Boehner’s plan to sue the president and demanded tougher action.[33]
    • Instead, Palin pushed for Obama’s removal from office for what she says are 25 impeachable offenses that include actions taken on immigration and Obamacare.[33]
    • “You don’t bring a lawsuit to a gunfight, and there’s no room for lawyers on our front lines...“A great awakening is due in this country and this is a message that will be sent to the president, that he is not an imperial president and lawlessness will not be accepted by the American people. That’s not what he was elected to do … to create his own laws as he goes along,” Palin said on July 8, 2014.[33]


  • President Obama responded to Boehner's threat of a lawsuit by labeling it a "stunt" and placing the blame for his executive orders on Republicans, who he claimed would not pass legislation in the House. Obama stood by his actions, stating, "I’m not going to apologize for trying to do something while they’re doing nothing.”[34]
  • White House Press Secretary Josh Earnest claimed it was "disappointing that Speaker Boehner and Congressional Republicans have decided to waste time and taxpayer dollars on a political stunt."[3]
  • Former Governor of Pennsylvania Ed Rendell (D) said of the lawsuit, “The constitution says you can impeach the president for high crimes and misdemeanors. There is nothing President Obama has done that is remotely close to a high crime or a misdemeanor.”[35]
  • House minority leader Nancy Pelosi called the suit a “legal boondoggle doomed to fail.”[9]
    • “This lawsuit is just another distraction from House Republicans desperate to distract the American people from their own spectacular obstruction and dysfunction,” Pelosi said in a statement.[9]
  • Democratic Congressional Campaign Committee Chairman Steve Israel issued a statement saying,“First this Republican Congress shut down the government over the Affordable Care Act and cost the economy billions of dollars. Now, they’re spending millions more to sue the president over ACA.Is there any question why a Congress that continues to force middle class families to foot the bill for their political stunts is the least popular in history?”[36]
  • John Yarmuth (D-KY) called the lawsuit a "tantrum" that will cost American taxpayers.[37]
    • "This is a taxpayer-funded tantrum and a lawsuit they don't even want to win," Yarmuth said.[37]

List of executive orders

While Boehner has specifically focused on Obama's failure to enforce the Patient Protection and Affordable Care Act's employer mandate, some of Obama’s other notable executive actions include:[38][3]

  • Immigration - The Deferred Action for Childhood Arrivals (DACA) program will “defer deportations for two years for people who came to the United States illegally as children.”
  • Climate change - In June 2014, the Environmental Protection Agency (EPA) proposed rules that would "require power plants to cut their carbon emissions from 2005 levels by 30 percent by 2030."[39]
  • Minimum wage - While Obama was unsuccessful in convincing Congress to raise the minimum wage, he did use executive actions to raise the wage for federal contract workers to $10.10.[40]
  • Gun control - Legislation to impose tougher background checks on gun purchases failed in the Senate, but Obama announced 23 executive orders to combat gun violence. The orders included steps to make information about mental illness available in the federal background check system. It also expanded research into the causes of gun violence.
  • Expanding rights for same-sex couples: The Obama administration has gradually extended federal rights to same-sex couples since the Supreme Court’s decision in 2013 that the Defense of Marriage Act barring same-sex marriage is unconstitutional.
    • In June 2014, the Labor Department announced a proposed rule that would extend protections of the Family Leave Medical Act to eligible employees in legal same-sex marriages regardless of whether they live in a state that recognizes their marriage.
    • Attorney General Eric Holder announced in February 2014 that the government would allow same-sex couples to file jointly for bankruptcy and mandate that they will not be compelled to testify against each other in trial. The administration also now treats same-sex couples like married couples when it comes to filing taxes.

Historical context of executive orders

While the outcomes of executive orders can vary greatly, the number of orders issued by President Obama is lower than most presidents in recent history. As of July 9, 2014, President Obama issued 182 executive orders since being elected president, which comes out to 33.58 orders per year. No president has had a number lower than that since Grover Cleveland's second term as president. George W. Bush, whose numbers were also low, averaged nearly three more orders per year at 36.38, while Bill Clinton averaged 45.50 per year. The most executive orders used in United States history was by Franklin D. Roosevelt, who averaged 290.71 per year with a grand total of 3,522 executive orders during his presidency.[41]

Past precedents

While American history has not provided a case similar to what Boehner has filed against President Obama, there have been lawsuits filed by members of Congress against presidents and their actions.[27] The following instances are some of the most notable in U.S. history.

NLRB v. Noel Canning Corp.

The National Labor Relations Board v. Noel Canning Corp. case was decided in favor of Noel Canning Corp. on June 26, 2014, with the ruling being that the president could not use the power of recess appointments when the Senate holds pro-forma sessions where the chamber does not conduct business but is not officially on recess. President Obama appointed three members to the NLRB in 2012 and labelled them recess appointments, bypassing Senate approval. The ruling stopped short of revoking the ability to appoint officials during an official recess, but it did refine the rules of the executive power. The case was decided 9-0, but the reasoning varied greatly among the justices.

Justice Stephen Breyer wrote of the decision, that the power to appoint officials during a recess "is not designed to overcome serious institutional friction." Antonin Scalia argued that the court should have pressed further, saying presidents have too long treated the appointment confirmation process as an "unreasonable burden."[42]

Clinton v. Jones

Former president Bill Clinton was sued in 1994 by Paula Jones, who accused him of making sexual advances toward her when he was governor of Arkansas and she was a state employee. Then-President Clinton attempted to gain temporary immunity from the Supreme Court, arguing that his duties as president did not allow the time to go through the trial. The Supreme Court ruled against Clinton which created the precedent that a sitting president would not be immune to civil lawsuits resulting from before their time as president or if the lawsuit was unrelated to the office.[43]

United States v. Nixon

During the Watergate investigation, Nixon was issued a subpoena for audio tapes of conversations with members of his staff in search of evidence of his involvement in the scandal. Nixon provided edited tapes to the court, but he claimed executive privilege allowed him to keep records between high ranking officials confidential. The Supreme Court ruled unanimously against Nixon's claim of executive privilege due to the likelihood that the tapes contained evidence of his involvement. Nixon resigned as president 15 days after the court ruling amid the threat of impeachment.[44]

Nixon v. Fitzgerald

The 1982 U.S. Supreme Court ruling in Nixon v. Fitzgerald, ensured the president "is entitled to absolute immunity from damages liability predicated on his official acts," by private citizens. The 5-4 majority included Chief Justice Warren Burger and Justices Lewis Powell, William Rehnquist, John Paul Stevens and Sandra Day O'Connor. According to the opinion of the court, the immunity from civil damages was due to the "President's unique office, rooted in the constitutional tradition of separation of powers and supported by our history."[45]

Justices William Brennan Jr., Byron White, Thurgood Marshall and Harry Blackmun voted in dissent. The dissenting opinion revolved around the idea that no president should be "above the law."[46]

Congressional lawsuits

Justice Lewis Powell noted in the footnotes of the majority opinion, however, that "We need not address directly the immunity question as it would arise if Congress expressly had created a damages action against the President of the United States." The footnote in this case left open the possibility of members of Congress bringing a case against the president.[45]

Recent news

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See also

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External links


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  2. 2.0 2.1 ABC News, "Boehner v. Obama: House Approves Resolution to Sue President," accessed August 26, 2014
  3. 3.0 3.1 3.2 3.3 3.4 Politico, "GOP’s Obama lawsuit to focus on employer mandate," July 10, 2014
  4. 4.0 4.1 The Huffington Post, "David Rivkin Hired As House GOP Lawyer For Obama Lawsuit," accessed August 26, 2014
  5. 5.0 5.1 L.A. Times, "House lawsuit over Obamacare to focus on employer mandate delay," July 10, 2014
  6. 6.0 6.1 The Hill, "Boehner suit targets O-care delay," July 10, 2014
  7. The Washington Post, "White House delays health insurance mandate for medium-size employers until 2016," February 10, 2014
  8. SCRIBD, "Bills-113pih-Hres," accessed July 12, 2014
  9. 9.0 9.1 9.2 New York Times, "Suit Against Obama to Focus on Health Law, Boehner Says," accessed July 12, 2014
  10. Politico, "5 questions about John Boehner’s lawsuit against Barack Obama," accessed July 17, 2014
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  13. Huffington Post, "John Boehner Calls Impeachment Talk A 'Scam' By The White House," accessed July 29, 2014
  14. GovTrack, "H.R. 676," July 30, 2014
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  16. Washington Post, "House clears way for lawsuit against Obama," accessed July 30, 2014
  17. U.S. House, "House Resolution 676," accessed July 30, 2014
  18. Politico, "House to spend $350K on Barack Obama lawsuit," accessed August 26, 2014
  19. Politico, "House files Obamacare lawsuit," accessed November 25, 2014
  20. Politico, "House panel backs Obama lawsuit," accessed July 30, 2014
  21. Roll Call, "White House: Boehner Lawsuit Uses Taxpayer Money Against Obama for ‘Doing His Job’," accessed July 9, 2014
  22. Politico, "House files Obamacare lawsuit," accessed November 25, 2014
  23. CNN, "Boehner hires third lawyer to sue Obama," accessed November 25, 2014
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  25. 25.0 25.1 Politico, "House panel to consider Obama lawsuit," accessed July 9, 2014
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  33. 33.0 33.1 33.2 Politico, "Sarah Palin mocks John Boehner’s lawsuit," accessed July 9, 2014
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  35. Newsweek, "GOP Split on Boehner's Lawsuit Against President Obama," accessed July 12, 2014
  36. Fox News, "Boehner announces Obama lawsuit will focus on health care law delay," accessed July 12, 2014
  37. 37.0 37.1 Courier Journal, "Yarmuth: GOP lawsuit against Obama is a "tantrum"," accessed July 15, 2014
  38. The Hill, "Obama’s key executive actions," accessed July 8, 2014
  39. The Hill, "EPA unveils landmark climate rule," accessed July 8, 2014
  40. The Hill, "Obama signs order on minimum wage hike," accessed July 8, 2014
  41. The American Presidency Project, "Executive Orders: Washington-Obama," accessed July 9, 2014
  42. Newsweek, "U.S. Top Court Curbs Presidential Power on Appointments," June 26, 2014
  43. The Washington Post, "Case Closed," December 3, 1998
  44. Law Library, "United States v. Nixon - Nixon Order To Release," accessed July 10, 2014
  45. 45.0 45.1 National Constitution Center, "Boehner’s lawsuit against Obama would face big hurdles," June 26, 2014
  46. Justia, "Nixon v. Fitzgerald - 457 U.S. 731 (1982)," accessed July 9, 2014